Re the Adoption of CCS and FLS [2019] NSWSC 71

Supreme Court of NSW|2018-11-29|Before: Hallen J

Aside) [1995] Fam 239 Re Evelyn [1998] FamCA 55 Re G (A Child) [2013] EWCA Civ 965 Re K & The Adoption Act 2000 [2005] NSWSC 858 Re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678; [2009] UKSC 17 Re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 Re WS (No 3) [2017] NSWSC 1160 Rice v Miller (1993) 16 Fam LR 970 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926 Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926 Texts Cited: "Adoption: Complexities Beyond the Law" (Speech delivered by Lord Wilson at the Denning Society Lecture at Lincoln's Inn, 13 November 2014) Category: Principal judgment Parties: Secretary for the Department of Family and Community Services (Plaintiff) CMS (Defendant) Representation: Counsel: Ms T Stevens (Plaintiff) Ms M Barnett (Plaintiff) Mr D J Murray (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Coast Law (Defendant) File Number(s): A211/2017

The Proceedings

HIS HONOUR: The Secretary for the Department of Family and Community Services ("the Secretary") applies, in these proceedings, for the making of an adoption order under the Adoption Act 2000 (NSW) ("the Act") with respect to two children, CCS, a male child, who was born in February 2014, who is now 5 years old, and FLS, a female child who was born in April 2015, who is now almost 4 years old. The Secretary also seeks orders dispensing with the consent of the birth parents of the children and orders approving the use of the surname of the proposed adoptive parents, "A-B".
The Dictionary to the Act relevantly defines the expression "parties to an adoption" to mean: (a) the children; (b) the birth parent or birth parents who have consented to the children's adoption; (c) person or persons selected to be the prospective adoptive parent of the children; (d) the Secretary; (e) the appropriate principal officer.
For the sake of preserving the anonymity of the parties, as is required by s 180 of the Act, I have referred to the children, rather impersonally, as "CCS" and "FLS" respectively, to the married couple in whose favour the adoption order is sought, as "RAB" and "DLAB", to the mother of the children, as "ALC", and to the father of the child, as "CMS". The medium neutral citation has been anonymised accordingly.
ALC has not played any part in the proceedings, and she is not a party. She is, presently, in custody serving a term of imprisonment of 18 months, with a non-parole period of 9 months. There will be reference to her involvement with the representatives of the Secretary later in these reasons.
In this case, the only parties are the Secretary and CMS. On 18 April 2018, pursuant to s 118 of the Act, which enables the Court, with consent, to permit such persons as the Court thinks fit to appear in, or be joined as, parties to the proceedings for an adoption order, CMS was joined as a Defendant to the proceedings.
CMS is currently subject to an intensive correction order made by the District Court on 28 April 2017, which order will expire on 27 April 2019 (for the offence of recklessly inflicting grievous bodily harm). An intensive correction order is an order of imprisonment of not more than 2 years made by a Court, which directs that the sentence is to be served by way of intensive correction in the community.
CMS engaged in the contested proceedings, by solicitor and counsel, and opposed the adoption of both children. Regrettably, it seems that counsel was unable to confer with him prior to the morning of the first day of the hearing. After they did have an opportunity to confer, further discussions took place between the legal representatives of the parties.
Following the adjournment which was taken to enable those discussions to occur, the Court was informed that CMS no longer opposed the adoption order (although did not feel able to consent either). In any event, he could not consent because of requirements of the Act regarding such consent.
The Court was also told that agreement had been reached on an amended Paternal Adoption Plan (which was a basis for no longer opposing the adoption order) and that there was no longer any real dispute to the change of each child's name, subject to the Court approving the change. The parties were able to agree that the name "S" would remain as part of each child's names: Tcpt, 28 November 2018, p 13(46) - 14(5), 19(18) - 19(32).
In the circumstances, and because some additional information was required, and because it was necessary for the Court to consider a matter raised by counsel for CMS prior to CMS's opposition being withdrawn, the matter was adjourned until 6 December 2018.
By the adjourned date, I had read all of the affidavits that had been delivered to my Chambers (including those delivered after the hearing, to the filing of which there was no objection) to which I shall refer. I stated to the legal representatives of the parties that whilst I had read the papers, and was prepared to make orders, I had not had the opportunity to prepare the reasons for the orders, but would do so, and have the reasons published subsequently. Each agreed that this course was appropriate. I took this course to avoid any further stress and anxiety during the time it would take to prepare the reasons for judgment and as the long vacation was to commence. I also stated that I would make the orders for adoption as sought and I would publish reasons as soon as practicable.
In the presence of counsel for CMS, I then made the orders sought in relation to each child. These are my reasons for the making of those orders.
As I have written in other cases, in all contested adoption applications, one certain, and obvious, result is that, whatever decision is made, either ALC, the birth mother, and/or CMS, the birth father, or RAB and DLAB, the proposed adoptive parents, will have to bear deep sadness and emotional loss. Regrettably, but realistically, the Court is unable to resolve the dispute by providing a result that is satisfactory to all, and it cannot permit a comparative balancing of the degree of sadness and sense of loss felt by the adults involved to dictate the result of the case.
I should mention that on the adjourned date, CMS did not appear. It appears that he had found the experience of being in Court somewhat overwhelming, and did not feel able to attend again. Counsel proffered an apology on the part of CMS which the Court, naturally, accepted.

Procedural History

The Secretary filed the Summons on 28 December 2017. He filed an amended Summons on 7 November 2018, and a further amended Summons on 5 December 2018, in which the following relief was sought: "1. That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the children's birth father, [CMS] be dispensed with. 2. That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the children's birth mother, [ALC] be dispensed with. 3. That pursuant to Adoption Act 2000, ss. [sic] 50(3), the amended Maternal and Paternal Adoption Plans in relation to the children, signed by the proposed adoptive parents and a delegate of the Secretary, Department of Family and Community Services on 31 October 2018, and 30 November 2018 respectively, be registered. 4. An order for the adoption of the children [CCS] and [FLS] in favour of the adopting parents [RAB] and [DLAB]. 5. An order approving the name '[AB]' as the surname and '[CC]' as the given names of the child [CCS]. 6. An order approving the name '[AB]' as the surname and '[FL]' as the given names of the child '[FLS]'."
(The only additional relief sought in the amended Summons related to the registration of the amended Maternal and Paternal Adoption Plans in relation to CCS and FLS as set out in Paragraph 3 of the further amended Summons.)
Both the Secretary and CMS were represented, at the hearing, by separate counsel and solicitors. Ms T Stevens of counsel appeared, on the first day of the hearing, for the Secretary, and Mr D Murray of counsel appeared for CMS. On the adjourned date, Ms M Barnett of counsel appeared for the Secretary and Mr Murray, again, appeared for CMS. There was no appearance by, or on behalf of, ALC on either occasion.
As I stated in Court, I was extremely grateful for the way in which the case was presented. All of the legal representatives approached the matter, on each occasion, with empathy and with due consideration for all of the persons involved. It is a difficult case at a human level.

The Evidence relied upon

The application for the adoption orders was supported by: 1. Four affidavits, affirmed 22 December 2017, 24 July 2018, 20 September 2018 and 1 November 2018, respectively, of Ms W M Wilson, who is Manager, Client Services, at the Central Coast Child and Family District Unit of the Department of Family and Community Services ("the Department"). She is also a delegate of the Secretary by virtue of an order given under his hand pursuant to s 206 of the Act. She has been in her current role since 26 May 2016, although she has worked with the Department since April 2010. In preparing her affidavit, she gave evidence that she had access to the Department's records in relation to CCS and FLS, a copy of many of which documents formed part of the exhibit to her affidavit; 2. An affidavit of Ms G Sedgwick, affirmed 7 December 2017, to which was annexed a confidential report, dated 21 November 2017, prepared under s 91 of the Act. Ms Sedgwick is an adoption assessor and an authorised person for the purpose of s 91(2A) of the Act. The report was based upon interviews with DLAB and RAB, with ALC, with CMS and with other interested persons; 3. A further affidavit affirmed on 5 December 2018, from Ms Sedgwick, was served and filed, without opposition, being an affidavit annexing an updated Court Report dated 5 December 2018; 4. Two affidavits, of RAB, affirmed 2 February 2018 and 1 November 2018 respectively; 5. Two affidavits, of DLAB, affirmed 9 February 2018 and 1 November 2018 respectively; and 6. An affidavit from three different referees, attesting to the good fame and character of RAB and DLAB.
For his part, CMS relied only upon his affidavit affirmed 13 June 2018. Although, on 18 October 2018, he had been directed to "serve any updating evidence or evidence in reply by 4:00 p.m. on 15 November 2018", no other evidence was received by the Court or relied upon by him. He, also, was not cross-examined.
In the circumstances, no deponent was cross-examined.

Service of Documents

In an affidavit sworn 20 February 2018, Mr C Davies, a licensed process server deposed to having personally served ALC, on 22 January 2018, at 7:15 p.m., at Watanobbi, a suburb of the Central Coast region of New South Wales, with the following documents: "3 … a. Covering letter from the Crown Solicitor's Office dated 10 January 2018; b. Notice of Application for Adoption Orders and Notice of Application for Consent Dispense Orders for [CCS]; c. Notice of Application for Adoption Orders and Notice of Application for Consent Dispense Orders for [FLS]; d. Adoption Plan for [CCS] and [FLS]; and e. Two brochures published by Legal Aid entitled 'Are there court proceedings for the adoption of your child' and 'When kids in care are adopted - Information for birth parents'."
In an affidavit sworn on 20 February 2018, Mr Davies deposed to having personally served CMS, on 18 January 2018, at 5:55 p.m., at Gosford, in the Central Coast region of New South Wales, with a copy of the same documents. Thus, there has been compliance with s 88(1)(a) (notice of the application for the adoption orders) and s 72(1) (notice of the application for consent dispense orders) of the Act.
ALC was provided with a copy of the Mandatory Written Information in regard to the adoption on 7 April 2017. CMS was provided with a copy of the Mandatory Written Information on 31 March 2017. Thus, there has been compliance with s 59(1) of the Act (ensuring that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption).
There was an affidavit of service of Ms H G Radford, affirmed 4 December 2018, regarding notice that was given on 23 November 2018, to ALC, of the hearing of the proceedings; an email dated 27 November 2018 acknowledging receipt on behalf of ALC; a letter dated 30 November 2018 advising of the outcome of the proceedings on 28 November 2018 and advising of the date to which the matter was adjourned (6 December 2018); and an email dated 3 December 2018 acknowledging receipt on behalf of ALC. (A copy of the amended Maternal Adoption Plan was also sent to her.)

Other Formal Matters

Before an adoption order can be made in New South Wales, the Court must be satisfied that a number of other procedural factual safeguards required by the Act have been met.
I shall refer to the formal matters that are required by the Act, by reference to the facts of this case, as there is no dispute about what follows: 1. Each of CCS and FLS was less than eighteen years of age when the Summons was filed, and each still is: s 24(1)(a) of the Act. 2. RAB and DLAB, were both resident and domiciled in the State of New South Wales at the date when the application for the adoption order was filed: s 23(2)(b) and s 28(1)(a). Each is an Australian citizen. 3. RAB and DLAB have been married to each other since June 2005 and have lived together for a continuous period longer than 2 years: s 28(4). 4. RAB and DLAB each meets the age requirements prescribed by the Act: s 27(2)(a). 5. In May 2017, RAB and DLAB were invited to submit an application form to adopt CCS and FLS, pursuant to s 45D of the Act. 6. Later in May 2017, RAB and DLAB were assessed to determine their suitability to be approved to adopt pursuant to s 45F of the Act. 7. RAB and DLAB are authorised carers who have had the care and responsibility for CCS and FLS under out of home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). Section 135A(1)(a) of the Care Act, relevantly, provides that "statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days, pursuant to a care order of the Children's Court". RAB and DLAB had been approved as long term permanent carers. 1. CCS was placed into the care of RAB and DLAB on 2 March 2015, when he was 13 months old. FLS was placed into the care of RAB and DLAB on 30 January 2016, when she was 9 months old. Each has been in the care of RAB and DLAB continuously since then. 2. RAB and DLAB are not related to either of CCS or FLS. They have not made, or given, any person, a payment or reward for, or in consideration of, the proposed adoption of each of CCS and FLS. 3. RAB and DLAB signed an application form to adopt pursuant to s 43 of the Act. 4. In November 2016, RAB and DLAB attended a Preparation to Adopt Training Seminar, which covered a number of topics relating to the application for adoption. 5. RAB and DLAB have been selected according to the requirements of the Act. They were living, as a couple, with the children, in Terrigal, at the time the application was filed. 6. RAB and DLAB are of good repute and are fit and proper persons to adopt the children (as required in s 28(1)(b) of the Act). Affidavits of referees in evidence before me attest to the good fame and character of each of the proposed adoptive parents. Furthermore, National Police Certificates have been issued in respect of each of them, showing "no disclosable Court outcomes" or outstanding matters were present. Each of the proposed adoptive parents has received a Working With Children Check clearance from the New South Wales Office of the Children's Guardian. In addition, the evidence of the referees and of caseworkers, establishes that they are able to fulfil the responsibilities of parents. 7. Consent to the adoption must be given by every person whose consent is necessary, unless that consent has been, or should be, dispensed with: s 90(1)(d) and s 52 of the Act. As stated, that consent has not been given by either ALC or CMS. 8. A copy of the Mandatory Written Information has been provided to ALC and CMS in person at an identified address respectively: s 59(1) of the Act. 9. For the purposes of s 87 of the Act, the application is made by the Secretary. The Secretary has consented to the adoption orders being made for CCS and FLS (as required by s 52(a) of the Act). The Minister, who has parental responsibility, has, by an authorised delegate, consented. As stated, the only persons whose consent to the adoption is required, and whose consent has not been given, are the birth parents. I am satisfied that at least 14 days' notice of the application for the order, containing the prescribed particulars, has been given to each of them. 10. The Court may not make an order for the adoption of a child unless a report in writing concerning the proposed adoption has been provided to the Court: s 91(1) of the Act. I have referred to the two reports of Ms Sedgwick earlier in these reasons. I shall say more about her initial report and the subsequent report prepared by her following the adjournment, later in these reasons. 11. Each of CCS and FLS is not an Aboriginal, or Torres Strait Islander child. 12. The requirements for dispensing with consent of ALC and CMS under s 67(1)(d) of the Act have been met. CCS and FLS each has an established and stable relationship with RAB and DLAB, demonstrated by the report of Ms Sedgwick.

Move to Brisbane

For reasons to which I shall come, it is next necessary to refer to the evidence of RAB and DLAB that was served a little less than a month before the hearing.
In his first affidavit, RAB had stated that he planned to reside with his family members and the children in the home at Terrigal and "have no current plans to move". DLAB also wrote that she had "no current plans to move".
However, in his affidavit filed shortly before the hearing, RAB stated that he had "obtained employment in the Brisbane CBD. This was a wonderful career opportunity, being a secure role with an increased salary". He has, apparently, been working there since about the middle of May 2018 and he currently works there during the week, returning to the family home at Terrigal every second weekend.
RAB stated in his second affidavit that he and DLAB had "purchased an acreage home north of Brisbane". He said that they have "now planned and budgeted to relocate the family to our Brisbane house in December 2018, pending the outcome of the adoption proceedings in relation to" the children.
In fact, other evidence revealed that contracts for the purchase of the property in Brisbane were exchanged on 5 May, 2018, and that the settlement of the purchase had occurred on 5 July 2018.
In relation to the planned move, RAB stated that: 1. The move will enable DLAB and him "to split the household and parenting workload more evenly"; he will be able to assist in taking the older children to school each day and help out at night with the children's bedtime routines; 2. The relocation will place the family "closer to our family, including my parents and sister" and DLAB's aunt and cousins, all of whom live on the Sunshine Coast; 3. The children and DLAB have visited the Brisbane home, having been authorised to do so by the Department; and 4. He is aware of the importance and value of continuing each child's contact with CMS and ALC, and "will ensure that contact proceeds as detailed in the [proposed] amended adoption plans".
DLAB, in her affidavit of 1 November 2018, reiterated what had been written by RAB. She added that: 1. The children will attend a local state school in Queensland. The primary school selected for each of them is within a small community environment; 2. The high school that has been selected is local and is a reputable private school with a vast subject selection; 3. The home is situated in a rural community oriented area while still being less than 1 hour from the Brisbane CBD; and 4. A text message had been sent to each of CMS and ALC about the proposed move.
The evidence also revealed that as at the date of hearing, DLAB, her two minor children and CCS and FLS, still remain living in Terrigal, New South Wales. It was said that they intend to move to Queensland later in December 2018. (This was confirmed by counsel for the Secretary on the adjourned date: Tcpt, 6 December 2018, p 30(50) - 31(05).)
One cannot be critical of RAB and DLAB wishing to relocate to the Brisbane area. However, the matter was before me on 14 June 2018, 21 August 2018, and on 18 October 2018, and the matter was not raised with the Court, although it appears notice of the relocation, after RAB accepted his new employment position, was given, by text message, to each of CMS and ALC, and must have been known to the Department before consent was given to take the children out of New South Wales, albeit for a short period of time.
(I should mention that there was a reference in an annexure to Ms Wilson's affidavit of 20 September 2018, of there having been a discussion between DLAB and Ms K Nixon, on 7 August 2018, in which the latter said "that the family have no plans to move to Queensland albeit they have a holiday home there. [RAB] is fly in fly out for his job…".)
The evidence regarding the events that had occurred, and the possible relocation of the proposed adoptive parents, and the children, to Queensland, ought to have been adduced much earlier than it was. Uniform Civil Procedure Rules, rule 56.3, provides that each party to proceedings in the Supreme Court under the Act has a duty to the Court to make known fully, and frankly, all matters relevant to the making of an adoption order, whether those matters tend to support, or tend not to support, making the order.
ALC, apparently, has stated that she is aware the adoptive parents are proposing to move to Queensland and that she is happy about that as the children will be closer to where she lives.
It is unlikely that planning the relocation would have promoted an ongoing harmonious relationship with, or alleviated the fears of, CMS, who had expressed concern about the children being relocated overseas in his June affidavit. However, at the hearing, with the evidence, any concerns of CMS were resolved.
It is fair to say that a move of the children to Queensland with RAB and DLAB may make it more difficult for the children to see CMS and ALC. However, each of RAB and DLAB has stated, and I accept, that they will endeavour to ensure continued contact between the children and CMS and ALC and with the other children. DLAB has stated, however, that she realises this will involve a minimum of 6 trips to NSW each year. When she and the children travel to NSW, they will stay with either of her parents, one of whom lives in Sydney and the other who lives in Newcastle. DLAB anticipates that the contact visits will occur in the school holidays.
There was discussion with CMS as to a new venue for, and an increase in the number of, future contact visits, and a place in Wyong was suggested. The meeting place is said to provide an opportunity to play and engage with the children, is wet weather appropriate and is further north than previous visit locations, making it easier for the children's sibling, DJC-S, to attend.
DLAB has also stated that they are also "willing to facilitate two Skype, FaceTime or telephone sessions per year between the children and [CMS], in addition to his existing scheduled contact". She and RAB will also provide both CMS and ALC with "an update on the children's progress in all areas, as well as their school reports (once the children start school)…at least twice a year, either via email or in person. We will also send photographs to both [CMS and ALC] at least twice a year via text message or email".
I shall refer to the further amended Adoption Plans later in these reasons.

Disputed Formal Matter

At the commencement of the hearing, and before CMS had arrived at Court, counsel stated that the move to Queensland raised an issue that CMS wished to agitate. (Although, following the discussions between the lawyers, the Court was told that CMS did not wish to agitate the issue further, it seems to me that I should identify the issue and deal with it. In this regard I was assisted, most helpfully, by the submissions of both counsel for the Secretary.)
Reference was made to s 23 of the Act, which section, relevantly, provides: "(2) The Court must not make an adoption order unless, when the application for the order is filed: (a) the child is present in the State, and (b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State. (3) For the purposes of this section, if the Court is satisfied that the child was present in the State, or that the applicant or each applicant was resident or domiciled in the State, for a period of 3 months immediately before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that: (a) the child was present in, or (b) that the applicant or each applicant was resident or domiciled in, the State when the application was filed." (Emphasis added.)
There was no dispute that, as at 28 December 2017, both RAB and DLAB were resident, and domiciled, in New South Wales.
Counsel for CMS then referred to s 28(1)(a) of the Act, which relates to the basic requirements for adoption by a couple, and relevantly provides that "two persons who are a couple may, subject to this Act, adopt a child only if (a) both of them are resident or domiciled in the State…". As is clear from the sub-section, there is no specific reference, in this sub-section, as to when the couple must be either resident, or domiciled, in New South Wales.
Counsel for CMS submitted that, whilst RAB and DLAB were both resident and domiciled in New South Wales when the application for the adoption order was filed in December 2017, RAB was neither resident, nor domiciled, in New South Wales at the date of the hearing. In those circumstances, an order for the adoption of the children, jointly in favour of RAB and DLAB, as a couple, could not be made.
I have carefully considered the submission of counsel for CMS and could not ignore it even though the submission was withdrawn subsequently. However, I am not persuaded that it is a submission that should be accepted.
Section 28 of the Act, in my view, should be interpreted within the context of Part 1, and consistently with the objects, of the Act, as a whole.
In Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28, the High Court (McHugh, Gummow, Kirby and Hayne JJ) wrote, at 381-382 ([69] - [71]): "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined '" by reference to the language of the instrument viewed as a whole'". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that '"the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court '"to determine which is the leading provision and which the subordinate provision, and which must give way to the other'". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was '"a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'". (Citations omitted.)
Furthermore, s 33 of the Interpretation Act 1987 (NSW), which, on its face, is in mandatory terms, provides: "Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
With these matters in mind, the context of Part 1 of the Act and the surrounding provisions must be considered. That part specifically addresses the jurisdiction of the Court (s 23 of the Act); who can be adopted (s 24 of the Act); who can adopt a child (s 26 of the Act); that an adoption application can be made either by one person or a couple (s 27 and s 28 of the Act); and the requirements where an adoption application is made by a relative, step parent and where it relates to a non-citizen child (ss 29, 30 and 31 of the Act).
I respectfully agree with the Secretary's submission that the temporal aspect of s 28(1)(a) of the Act should be read consistently with the jurisdictional requirements of s 23(2)(b) of the Act. It would not be consistent, or harmonious, for the legislature to have provided for a requirement of proof of residence or domicile of the proposed adoptive parents for jurisdictional purposes, being at the time of the filing of the Summons (in s 23(3) of the Act), whilst when dealing with the "basic requirements" for a couple seeking to adopt a child, requiring proof of their residence or domicile at the time of the making of an adoption order. To accept the interpretation advanced on behalf of CMS requires an additional hurdle to be satisfied where the proposed adoptive parents have already satisfied the requirements giving the Court jurisdiction under s 23(2)(b) of the Act.
Furthermore, it would serve no demonstrable purpose for there to be two different requirements regarding the time of residence or domicile of the proposed adoptive parents.
Moreover, if s 28 of the Act required the proposed adoptive parents to be resident or domiciled in the State at the time the adoption order was made, the Court could not make orders without receiving further evidence in order to be satisfied they were then resident or domiciled in the State, particularly if judgment were reserved. Such an interpretation would result in uncertainty and potential confusion for proposed adoptive parents.
An evidentiary anomaly would be created whereby there is a requirement for proposed adoptive parents to remain resident or domiciled in the State until an order is made, even though there is no requirement for the child, or children, the subject of the adoption order, to remain resident or domiciled in the State at the time the order is made.
Finally, I should refer to s 90 of the Act which provides that the Court must not make an adoption order in relation to a child unless the Court is satisfied of a number of matters. None of those matters relate to the proposed adoptive parents being resident or domiciled in New South Wales at the date of the making of the adoption order.
In case I am wrong in this construction of s 28 of the Act, I should mention that the evidence, overall, satisfies me, that at the date of the adjourned hearing, on which date I made the adoption order in relation to each child: 1. DLAB and the children remain living in Terrigal, and RAB flies from Queensland to New South Wales reasonably regularly. 2. RAB undertakes travel in order to engage in work, as is nowadays very common. (The ease with which people communicate with each other, regardless of where they are, has the consequence that a breadwinner of a family unit has the ability to work far from their home and yet remain in frequent contact with his, or her, spouse and children with the result that the impact of separation is minimised.) 3. RAB, whilst working in Queensland, has not ceased to be resident in New South Wales because he is physically absent when working. He seems to have maintained a continuity of association with his home and family, including with CCS and FLS. (It is clearly possible to have two places of residence, and whilst RAB cannot be physically present in both at the same time, he may be resident in each at the same time. People come and go from the place in which they are resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree.)
In the circumstances, I am satisfied that at the date of the making of the orders, both RAB and DLAB remained resident in New South Wales. In this regard, as was written in Harding v Commissioner of Taxation [2018] FCA 837, per Derrington J, at [5] (albeit in relation to different countries): "… Courts have seen numerous cases where the breadwinner or one of the breadwinners for a family unit is able to work in a foreign country on a full time basis without relocating their family there and maintain the family unit and residence in their country of origin."
I am satisfied that the jurisdictional requirements of s 23(2)(b) and the "basic requirements" of s 28(1)(a) of the Act have been satisfied.

Uncontested Background Facts

A comprehensive account of the history is contained in the affidavits read in the case for the Secretary. It is, now, not necessary to repeat all of that history in detail. The following facts are clearly established.
Each of CCS and FLS was born in Gosford District Hospital. His and her birth certificate, respectively, identifies his, and her, parents as ALC and CMS.
ALC was born in January 1987 and is currently 32 years of age. CMS was born in July 1973 and is currently 45 years of age. CMS says that they were in a de facto relationship from September 2012.
CMS is said to be of Scottish heritage and of the Presbyterian religion. He is currently in good health, although he sustained a back injury that restricts some of the duties he is able to perform.
As well as CCS and FLS, ALC and CMS, together have another male child, DJC-S, who was born in February 2013. (DJC-S was assumed into care one day after his birth and on 3 June 2013, an order was made in the Children's Court of New South Wales at Woy Woy, granting parental responsibility for him to SI and BI until DJC-S attains the age of 18 years. SI is the sister of CMS and BI is her husband.
ALC has 4 living children being BrF, born in November 2004, who is currently aged 14 years; BlF, born in September 2006, who is currently aged 12 years; ZW, born in January 2010, who is currently aged 9 years; and LG, born in September 2016, who is currently aged 2 years. (Another child, AC, who was born in March 2009, died in July 2009.)
Each of ALC's children have been removed from her care and final orders placing him and her, respectively, under the parental responsibility of the Minister of the Department until he, or she, attains the age of 18 years, have been made. BrF and BlF live with their authorised carer, T, in Maitland. ZW lives with her paternal grandmother, G. LG lives with his carers, L and K, in Kariong.
The Department's records reveal that ALC has a current partner, HG. Not very much is known about him.
It is not clear whether CMS is in a current relationship, and if so, the identity of any partner.
It appears to be accepted that CMS's "lack of real and meaningful parenting responsibility for the children is significant". Yet, "he maintains a firm view that a reasonable possibility of restoration to his care exists". He also accepts that ALC is unlikely to support the return of the children to him: see paragraphs 2 and 3 of his counsel's submissions.
RAB was born in October 1969 in Germany. He has resided in NSW for almost 18 years. He is now an Australian citizen having been granted citizenship in February 1983.
DLAB was born in Australia in June 1975. She has resided in NSW for all of her life.
RAB and DLAB married in June 2005. They have lived together at their current address in Terrigal, also on the Central Coast of NSW, since 2012.
They have two children, being a son, EtAB, who is 11 years old and a daughter, EAB, who is 9 years old. DLAB has a son, J, from a prior relationship, who is 21 years old.
RAB and DLAB are "authorised carers".
On the day he was born, CCS was assumed into the care of the Director General, Department of Family and Community Services (as the Secretary was then known), under s 44 of the Care Act. Less than a week after his birth, the Children's Court of New South Wales at Woy Woy made an interim order placing CCS under the parental responsibility of the Minister of Family and Community Services ("the Minister of the Department"). This order was continued, until 21 January 2015, when the Children's Court of New South Wales at Woy Woy made final orders allocating parental responsibility for CCS to the Minister of the Department until CCS attained the age of 18 years.
Less than a week after her birth, the Secretary filed an application in the Children's Court seeking interim and final orders allocating parental responsibility for FLS to the Minister until she attained the age of 18 years. On 11 May 2015, the Children's Court of New South Wales at Woy Woy made an interim order placing FLS under the parental responsibility of the Minister of the Department. This order was continued, until 2 December 2015, when the Children's Court of New South Wales at Woy Woy made final orders allocating parental responsibility for FLS to the Minister of the Department, until FLS attained the age of 18 years.
As previously stated, CCS was placed into the care of RAB and DLAB on 2 March 2015. He has remained living with them, continuously, since that time.
As previously stated, FLS was placed into the care of RAB and DLAB on 30 June 2015. She has remained living with them, continuously, since that time.
It is not necessary to set out all of the details relating to the child protection history in relation to each of the siblings, and siblings of the half-blood, of CCS and FLS. It is fair to say, however, it is lengthy and detailed. It is equally fair to say that it involves events that occurred prior to about 2015, other than in relation to LG, where Risk of Significant Harm Reports were received in 2016.

The Birth Parents

ALC and CMS shared a troubled and turbulent history. There is said to have been a history of drug and alcohol abuse and some domestic violence between them. In addition, each has some criminal history.
Currently, ALC is incarcerated. In relation to CMS, he was incarcerated between November 2014 and October 2016.
In his affidavit of 13 June 2018, CMS stated: "27. I was in jail, either bail refused, or serving a sentence, from 10 November 2014 to 1 October 2016. 28. I have undertaken at least six (6) random supervised urine analysis at the request of officers of Family and Community Services. The first test, which was taken on 4 March 2014, was positive, but that was a result of being in the presence of someone else using illegal drugs. The other tests have all been negative for drugs and / or alcohol. 29. I have also undergone urine analysis as directed from Probation and Parole, and they have all been negative. 30. I have completed a relapse prevention course in March 2014. 31. I have completed four our [sic] of eight sessions of "Pathways to Parenting". 32. I have completed the 'Equips' Domestic Violence course, and have a certificate of completion. 33. I have one month remaining in the 'Equips' Aggression course. … 35. I have attended counselling with a psychologist, [P] - Stoker."
Since 7 February 2014, information obtained by the Department from NSW Police, reveals that ALC has undertaken 5 random urine screens, with each one negative for drugs or alcohol. However, she is said to have confirmed that she had used cannabis during her pregnancy with LG.
There has been some contact between ALC and CMS, and CCS, since he was taken into care. Both attended supervised contact visits with him, between 14 March 2014 and 22 July 2014, on 28 occasions, and "the contact sessions were reported as being positive". However, on 31 July 2014, the Wyong Local Court made an apprehended domestic violence order prohibiting CMS from, amongst other things, assaulting, molesting, harassing, threatening, or otherwise interfering with, ALC.
Following the making of the apprehended domestic violence order, it became necessary to vary the contact arrangements so that ALC and CMS had separate contact visits from each other with CCS. Both parents were consistent in attending the separate contact visits and the visits were reported as being positive.
In 2015, there were 15 contact visits between CCS and ALC and the visits were reported as being positive.
In relation to FLS, supervised contact was to take place on one occasion per week for the first month, and then on one occasion per fortnight for two months and on one occasion per month for three months and then on one occasion every two months.
Throughout 2016, the supervised contact visits with ALC and CMS and CCS and FLS occurred every two months. ALC had supervised contacts, once in each of March, April, July, September, October and December, 2017. Each contact was organised and supervised by RAB and DLAB, occurred at a park, and was reported to have been positive, with no concerns raised.
There appears to be no dispute that ALC has a positive, and important, relationship with each of CCS and FLS. ALC, consistently, has maintained contact with the children since the removal of each of them. The children call ALC "Mummy A".
The maternal adoption plan proposes that the contact regime continue for ALC at a minimum of six times per year. It provides that 4 of those visits are with the maternal siblings of the half blood.
The evidence given by DLAB reveals that contact with ALC has occurred this year as scheduled other than she missed two contact visits on 29 June 2018 and 8 October 2018. In relation to the latter contact visit, ALC was unable to attend as she was then incarcerated at Berrima Correctional Centre.
During the period of his incarceration between November 2014 and October 2016, contact visits between CMS and CCS and FLS were suspended. However, whilst serving his sentence, CMS was sent photographs on one occasion, and on another was informed about FLS having been placed with RAB and DLAB.
Upon his release from prison, CMS had contact with CCS and FLS once in November 2016 (at which time his mother was also present and met the children for the first time), and then twice in 2017, once in March and once in September. Each contact was organised by RAB and DLAB, and supervised by a representative (a case worker) from Wesley Dalmar at its offices. Each contact was reported to have been positive, with no concerns raised. More recently, RAB and DLAB have begun supervising contact. The children call CMS "Daddy C".
In 2018, CMS has had visits with the children according to the paternal family visit schedule prepared by DLAB: on 25 February, 10 July and 9 October 2018. The next visit was scheduled for 20 December 2018.
There has been intermittent, sporadic, and not very much contact (3 visits in total) between both children and his, and her, sibling, DJC-S. He usually attends with CMS, although did not do so on the visit of 9 October 2018 as he was on holiday.
They have had slightly more contact with their siblings of the half blood. Their contact is usually at the same time as ALC's contact visits. RAB and DLAB planned to have a Christmas visit scheduled in December 2018.
Historically, ALC has been resistant to any application for adoption. In 2016, she expressed to the caseworker that she did not want the children to be adopted. Despite that view, she has enjoyed a respectful and consistent relationship with the proposed adoptive parents.
In August 2017, Ms Sedgwick met with ALC in Gosford and ALC spoke with her positively about the proposed adoptive parents and acknowledged the level of care both the children were receiving under the care of RAB and DLAB. However, ALC maintained that she did not want CCS and FLS to be adopted and that she would like them to remain under the parental responsibility of the Minister so that contact could be guaranteed.
In a more recent meeting with Ms Sedgwick in October 2017, ALC having heard the explanation of the adoption process, stated that she was not agreeing to the adoption as it meant that each child could not return to her care when he, or she, was old enough to make his or her own decision. ALC informed Ms Sedgwick that she had read the adoption plan and "agree[s] with the Adoption Plan" but will not sign the Plan as she does not agree to the change to each child's names.
CMS, until the hearing, had consistently maintained his opposition to the adoption. Throughout 2016 and 2017, he consistently informed caseworkers that he did not consent and that "they're my kids, no way in the world is anyone going to adopt them"; that he would contest the matter at hearing; and in his affidavit of 13 June 2018, stated that he has concerns about the children not being raised by reference to his Scottish heritage, that he believes that there is insufficient contact permitted under the adoption plan, and he has concerns that the proposed adoptive parents might move the children overseas.
CMS also states that "ideally" the children would be in his care, but he has not made any application for restoration. At the hearing, it seemed to be accepted that such an application is unlikely to be made.
It is fair to say that whilst CMS has had only a limited relationship with the children, the steps that he has taken indicate that he wishes it to be a growing relationship.

The Proposed Adoptive Parents

The proposed adoptive parents identify as being Australian and being of the Protestant religion.
RAB is employed as a senior Information Technology Security Consultant whilst DLAB is employed as a company director. Between them, they have sufficient financial resources to meet the needs of both the children. They live in a two storey home with many amenities. Material circumstances are important but not necessarily decisive.
Having raised their own child, or her own son, both RAB and DLAB understand the significant responsibilities and challenges of parenting.
The needs of both children are very well met under the care of the proposed adoptive parents. They are well bonded to the proposed adoptive parents and to the three other children in the family. They are also very close to each other as siblings. Both of the children share a stable, and nurturing, relationship with RAB and DLAB and refer to the proposed adoptive parents as "daddy" and "mummy" respectively.
I am satisfied that each child has a warm, positive, strong, and loving relationship, and each shares his, and her, primary attachment, respectively, with the proposed adoptive parents. They all have a close bond.
These matters are clearly endorsed by the referees.
The proposed adoptive parents have demonstrated a strong commitment to both children's ongoing care and a wish to provide them with a strong sense of stability and permanency.
Reports that I have read suggest that the proposed adoptive parents interact with FLS in a loving, calm and gentle manner and are attempting coping strategies in relation to the behaviour of CCS.
Despite the concerns of CMS, the birth parents share an Anglo-Australian cultural heritage. No additional requests have been made by either CMS or ALC regarding the children's religious or cultural heritage.
RAB and DLAB have exchanged mobile telephone numbers with CMS and with ALC "to provide updates of the children and to facilitate contact". They have also agreed to provide regular written updates regarding each child's health, education and development in person at contact visits. They appear to be committed to maintaining the contact between the birth parents and the children and have demonstrated this commitment by the regular scheduling of contact visits between them.
RAB supports the children with their life stories by taking photographs at family events. Currently, at his and her age, respectively, neither child asks any questions about his, or her, life story.
DLAB has prepared paternal and maternal contact schedules each year.

The Children - CCS and FLS

Both children have been developing well and have not had any significant health concerns. However, in 2017 it was reported that CCS did not like routine and DLAB commented that occasionally CCS's reactions were "over the top" (such as excessive crying).
In 2018 it has been apparent that CCS has a delay in learning and some behavioural challenges. Between February and June 2018, he attended sessions with a psychologist and completed the Autism Spectrum Rating Scale Test. It has been recommended that he have an Autism Diagnostic Observation Schedule assessment in the near future. The proposed adoptive parents have been advised to use some therapies such as a weighted blanket and use of straws rather than cups.
RAB and DLAB have not raised any concerns in relation to the behaviour of FLS since she was placed in their care.
The children attended pre-school until July 2018. Since then, they have been at home with DLAB. It is proposed that each will recommence pre-school in the 2019 term, with CCS attending at a smaller, and more appropriate, pre-school.
No concerns have been raised about this temporary arrangement and both children are developing well and meeting their educational milestones. They are surrounded by siblings at home and are still being well socialised. Each child's behaviour appears to be age and developmentally appropriate.
Importantly, both children have a close and loving relationship with the children of RAB and DLAB, and with J, DLAB's son. Similarly, DLAB reports that the other children have bonded well, particularly with FLS.
The children have also bonded well with DLAB's mother.
There is evidence that each of CCS and FLS, respectively, appears to be developing an age appropriate understanding of his and her birth. RAB and DLAB talk readily with each about birth family members in an age appropriate way.
Each of CCS and FLS is very young and does not understand the adoption process. Each is presently meeting developmental milestones but the level of understanding is such that the wishes of each are not relevant in the circumstances.

The Adoption Plans, as amended

Section 46 of the Act, relevantly, provides: "46 What is an adoption plan? (1) An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to: (a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following: (i) the child's medical background or condition, (ii) the child's development and important events in the child's life, (iii) the means and nature of contact between the parties and the child, and (b) any other matter relating to the adoption of the child. (2) Without limiting the matters for which an adoption plan may make provision: (a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and (b) it may provide for the giving of certain financial and other assistance as referred to in section 201. (2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child. (2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child. …"
Section 90(1)(h) of the Act requires, in the case of a child (other than an Aboriginal or Torres Strait Islander child) that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.
Section 90(2) of the Act provides that the Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. Thus, it is necessary to consider this aspect also.
I am satisfied that each of CMS and ALC, being a birth parent who has not consented to the adoption of either CCS or FLS, has been given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the children.
The initial Maternal Adoption Plan provided for face-to-face contact between the children and ALC to occur at least six times per year for a period of two hours. The contact was to be arranged directly between the proposed adoptive parents and ALC, and was to occur at a mutually agreed location. The children's siblings were also to be included in four of the six visits.
The initial Paternal Adoption Plan provided for face-to-face contact between the children and CMS to occur at least four times per year for a period of two hours. The contact was to be arranged directly between the proposed adoptive parents and CMS, and was to resemble the current contact schedule of March, July, September and December each year.
The initial Adoption Plans also provided for RAB and DLAB to share information about the children's progress with the birth family through letters and photographs.
The contact proposed maintained the level of face-to-face contact between the birth parents and the children as provided for in the children's Care Plans, and allowed an opportunity for the children to build on their knowledge of the birth family and their own growing sense of identity.
The initial Adoption Plans also took into account the children's and the proposed adoptive parents' sharing of a common cultural background, and where the proposed adoptive parents and the birth family would contribute to the development of the children's cultural heritage throughout their upbringing.
Following a mediation that occurred on 9 October 2018, the Department prepared further amended Maternal and Paternal Adoption Plans. Each of the Department and RAB and DLAB has agreed to those further amended Adoption Plans.
The amendments to the Maternal Adoption Plan maintain the frequency of contact at no less than six times per year and confirm that contact is to occur in NSW. The amendments also provide that ALC is to confirm her attendance at contact at least one week prior to contact occurring, and if she does not, that the visit may not proceed. This will provide a degree of certainty for all parties involved.
ALC has confirmed that she has read the maternal Adoption Plan and agrees with the adoption itself, but will not sign the Maternal Adoption Plan as she does not agree with the change of name of each child.
The amendments to the Paternal Adoption Plan made arrangements for contact including increasing the frequency of contact with CMS from four times per year, to include two additional Skype, or telephone contact on each child's birthday. The amended Paternal Adoption Plan also confirmed that contact is to occur in NSW and specified the specific venue for that contact which had been agreed to by the birth father.
The amendments also provide that CMS is to confirm his attendance at contact at least one week prior to contact occurring, and if he does not, that the visit may not proceed. This will provide a degree of certainty for all parties involved.
The Department and the proposed adoptive parents have agreed to seek registration of the amended Adoption Plans.
Counsel for the Secretary submits that the arrangements for contact between each of CCS and FLS and each birth parent under the amended Adoption Plans is appropriate and proper in the circumstances, as each broadly reflects contact arrangements which have been in place for some time; that each provides for contact at a frequency that has been working; that each allows flexibility in timing of contact and promotes contact close to special events; each also allows for future telephone and Skype contact; that each specifies a minimum level of contact that is, in all the circumstances reasonable; and each provides for continued contact between the children and their siblings of the whole or half blood. In these ways, each proposed amended Adoption Plan, in all of the circumstances, will promote the best interests of the children. I respectfully agree. Accordingly, the conditions for registration of the amended Adoption Plans are satisfied.
Each Adoption Plan also may be adapted to the needs of each of the children as he and she grows.

The Names of the Children

In the event that an adoption order is made, the Secretary seeks an order that the name of CCS be changed to CCAB and that the name of FLS be changed to FLAB.
The proposed adoptive parents do not want to retain the name "S" as a middle name of each child as it would make the names too long. That name is of importance to CMS because it is his family name and it maintains a connection with his Scottish background. ALC wishes the retention of the name "S" also.

The Legal Framework Regarding Adoption - Statutory Framework and Principles

I have taken what follows, principally, from my decision in Re WS (No 3) [2017] NSWSC 1160. Even though CMS is legally represented, and even though, in other circumstances, I might refer to what I had written in that decision, in a summary way, for his benefit, and for the benefit of CCS and FLS, should, in the future, each wish to read the reasons for making the orders that I shall make, I repeat, where necessary with additions, what I have previously written. Although I shall refer to the "child", on occasions in this part of these reasons, what is written applies equally to both CCS and FLS.
I shall not deal in this part with the parts of the Act to which reference has already been made.
Adoption, in its legal sense, has always been regulated by, and is purely a creature of, statute. There is no adoption at common law. Relevantly, the starting point in this case, is the Act, which commenced (ss 12 to 15, 18 and 19(1), and cl 3 of Sch 3, excepted) on 1 February 2003. It has been amended since then.
Whilst the Act contains objects, to which reference will be made, it does not contain any stated purpose for adoption. The Long Title, relevantly, refers to an Act "with respect to the adoption of children … and for other purposes".
An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents' family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect of an adoption order is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents and the adoptive parents.
For the purposes of the application of the Succession Act 2006 (NSW) ("the Succession Act") to the devolution of any property in relation to which a person dies intestate, and the construction of any disposition of any property, an adopted child is taken to be related to another person, being the child or adopted child of his, or her, adoptive parent, or parents, if he, or she, was adopted by 2 persons who are the spouses of each other jointly, and that other person is the child, or adopted, child of both of them, as brother or sister of the whole blood, and in any other case, as brother or sister of the half-blood: s 109 of the Succession Act.
The adoption creates a legal fiction: that a child is the child of parents with whom there is no biological relationship. For this, and other, reasons, adoption will be an extremely important step in the child's life, which will determine her, or his, identity and family relationships throughout her, or his, remaining life. Thus, the making of an order must be considered, not as a means of determining with whom a child is to live, but as a way of making a child legally part of a new family and severing any legal relationship with her, or his, birth family. In addition, adoption is something with lifelong implications.
As has been pointed out in regard to the effect of an adoption order, in Oxfordshire County Council v X [2010] Fam Law 790; [2010] EWCA Civ 581; at [4]: "It is important to remember that this is not just some legal fiction. As Thorpe LJ said in Re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption is 'the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences.'"
In In the matter of D (A Child) [2014] EWFC 39, at [2], Sir James Munby wrote, in relation to an adoption order: "For the child, an adoption order, as I recently had occasion to remark (Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), para 54) "has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences." For the parents it means the permanent loss of their child. Whatever the ultimate decision, [the child] and his parents will have to live with the consequences for the remainder of their lives, in [the child's] case, given his age, potentially into the 22nd century."
After referring to what had been said by Sir James Munby, Lord Wilson of the UK Supreme Court, in "Adoption: Complexities Beyond the Law" (Speech delivered at the Denning Society Lecture at Lincoln's Inn, 13 November 2014): "I totally agree. The [adoption] order is an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives."
(Perhaps, the reference to four people should, in the present case, be a reference to six people, when one includes the children, the birth parents and the proposed adoptive parents.)
No doubt, for these reasons, Sackar J, now the Adoptions List Judge, has reminded all that "arguably the most important work at least in [the Equity] Division of the court by a very large margin … is determining applications for adoption": Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9]. I respectfully agree, and consider an adoption order as one of the most, if not the most, significant, and, in human terms, far-reaching of all orders available to a judge. As Sir Thomas Bingham wrote in Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, at 251G-H, an adoption order possesses "a peculiar finality".
Section 6 of the Act provides that the provisions of Chapter 2 are "intended to give guidance and direction in the administration of [the] Act. They do not create, or confer on any person, any right or entitlement enforceable at law".
Section 7 of the Act states the objects of the Act as: "(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, (d) to recognise the changing nature of practices of adoption, (e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas, (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and other international agreements, (g) to encourage openness in adoption, (h) to allow access to certain information relating to adoptions, (i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents."
In Re Adoption of KH [2015] NSWSC 274 ("Re Adoption of KH"), Brereton J noted, at [20], that: "In speaking of adoption being a service to the child, the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption, just because his or her needs are already adequately being met."
In determining this case and in considering the best interests of the children, I have not forgotten that the blood link is always a factor to be taken into account. As stated, s 7 specifically provides that one of the objects of the Act is to ensure that adoption law and practice assist a child to know, and to have access to, her, or his, birth family and cultural heritage. I shall refer to matters in s 8 on this point shortly.
As was said in Rice v Miller (1993) 16 Fam LR 970 and Re Evelyn [1998] FamCA 55 (albeit in another context): "I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its decision making process ... Each case should be determined upon an examination of its own merits and of the individuals there involved."
Section 8(1) of the Act requires the Court, in making an adoption decision, to have regard (as far as practicable or appropriate) to principles which include the following: "(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, …"
In Director General Department of Human Services; Re M [2011] NSWSC 369 at [88]-[91] (cited with approval by Bergin CJ in Eq in Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926 ("Re JLR"), at [93]), I wrote: "It is to be noted that s 8(1) refers to "principles" pursuant to which a decision will be made about the adoption of a child. Section 8(2) refers to factual matters for consideration in determining what is in the best interests of the child. Of course, and unsurprisingly, there is no definition of either of the terms "the best interests" or "the paramount consideration" in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1994] FamCA 132; [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity. The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise: Re B (A Minor) [2001] UKHL 70 at [16]; [2001] UKHL 70; [2002] 1 All ER 641. The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have. Not all of the factors are referred to in the context of the child whose adoption is sought. For example, in s 8(2), there is a reference to 'any wishes expressed by either or both of the parents of the child' and 'to the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood.'"
As I have also written, "the term 'best interests of the child' is a long-standing, important and salutary, principle of substantive law (Northern Territory v GPAO (1999) 196 CLR 553 at 584) and does not require elaborate elucidation": Department of Family & Community Services and LH; Re R [2011] NSWSC 551 at [40].
McHugh, Gummow and Callinan JJ said in CDJ v VAJ (1998) 197 CLR 172, at 218-19; [1998] HCA 76, at [150]-[151], albeit in the context of applications for parenting orders, described what is in the best interests of children as: "…necessarily [involving] predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order ... Best interests are values, not facts."
As has recently been written by O'Donnell J in the Supreme Court of Ireland in In the matter of the Adoption Act, 2010, Section 49 (2), and in the matter of JB (a minor) and KB (a minor) [2018] IESC 30 at [6]: "…the 'best interests of the child' is a phrase with a long history in the law relating to children. There is near universal agreement on the merit of the test, but considerable scope for vehement disagreement on what the test implies in a particular case, whether between parents and children, parents themselves, relatives, social workers, lawyers, and indeed judges. The best interests test involves both broad societal judgments and individualised determinations in a particular case. In the context of a statute, it does not authorise the court to exceed the statutory limitations of the decision making process: rather, it means that, within the area in which a court has to make a decision, where there is a discretion, the decision should be made on the basis that the paramount consideration should be the best interests of the child, rather than the interests of parents, relatives, or the State itself."
It is obvious that "paramount" consideration cannot mean "sole" consideration.
Lord McDermott in J v C [1970] AC 668 at 710, said that the words "paramount consideration": ". . . must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood."
In Adoption of JLK and CRK [2017] NSWSC 7 ("Adoption of JLK and CRK"), Brereton J, at [12], referred to the "paramountcy principle": "The "paramountcy principle" contained in par (a) means that the inquiry is child and future focussed: as the best interests of the children, both in childhood and in later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives) so as to ascertain which will best serve the interests of these children now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future)."
In Application of H and H, child JW (2011) 45 Fam LR 681 at 688; [2011] NSWSC 93 at [40], I considered that, in approaching the question of what is in the best interests of the child, the Court should "weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have." I went on to state, at [41], 688: "Importantly, the focus is on the best interests of the child, not the interests of the applicants as the adoptive parents. This does not mean that their legitimate interests and desires, or their views on what is in the best interest of the child, should be ignored. However, the touchstone for the court's ultimate decision on whether to permit the change of a given name, remains the best interests of the child."
Section 8(2) of the Act requires the Court to have regard to the principles at s 8(2)(a) - (k) when determining the best interests of the child, namely: "(a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child."
It can be seen that the sub-sections are of a different character from one another. Sub-sections (a) to (d) and (j) relate particularly to the child; sub-sections (e) and (f) relate to the birth parents and birth family; subsections (g) to (i) relate to the proposed adoptive parents. Sub-section (k) requires the Court to consider that it would be better for the child that the adoption order should be made than that it should not be made in order to best meet the needs of the child. This requires the Court to analyse the arguments for and against making an adoption order and to explain the reasons for preferring one alternative to any others. In order to carry out this task, the Court requires evidence which addresses the different alternatives that are realistically available and to consider arguments for, and against, each.
In almost all adoption cases, there can be "no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child": In re B (A Minor) (Adoption: Natural Parent) [2002] 1 WLR 258; [2001] UKHL 70, per Lord Nicholls, at [16].
However, it is clear from the Act that the focus is in determining the best interests of the child, and how the making of an adoption order would benefit him or her, rather than on how such an order would, or would not, benefit others.
I have referred to s 24(1)(a) of the Act (relating to the age of CCS and FLS, as less than 18 years of age on the date on which the application for the order was made.)
Section 32(1) of the Act requires the Court, in making an adoption decision, to also take into account, amongst other things, the culture, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved.
Section 52 of the Act provides: "The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given: (a) in the case of a child who has not been previously adopted by: (i) each parent of the child, and (ii) any person who has parental responsibility for the child, or (b) in the case of a child who has previously been adopted-by each adoptive parent of, or person who has parental responsibility for, the child."
Relevantly, s 54 of the Act provides: "(1) Consent is not required under section 52 if: (a) the requirement for the consent has been dispensed with by the Court, or (b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or (c) the child gives sole consent to his or her adoption in accordance with subsection (2), or (d) the child is 18 or more years of age. (2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years. (3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless: (a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or (b) the Court dispenses with the giving of notice. (4) The regulations may prescribe the particulars to be contained in a notice under this section."
Clearly, the age of each child, inevitably, will give rise to different considerations in different circumstances.
Under s 66 of the Act, a requirement for the consent of a child or any other person to the child's adoption under the Act can be dispensed with if the court makes an order under Division 3 of Part 5 of the Act dispensing with the requirement, which is defined as a "consent dispense order".
In certain circumstances, the Court can make a consent dispense order, dispensing with the requirement for consent to an adoption. Relevantly, s 67 of the Act confers a power on the Court to make a consent dispense order in relation to the requirement for consent by a parent if the Court is satisfied of certain matters.
White J (as his Honour then was), in Re K & The Adoption Act 2000 [2005] NSWSC 858 at [21], explained: "Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied."
The relevant circumstances in this case, in which the consent of CMS and ALC can be dispensed with, if that is what is required, are limited by s 67(1)(d) as follows: "(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) … (b) … (c) … (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii)…"
For the purposes of s 67(1)(d) of the Act, an "authorised carer" is relevantly defined as any person who has care and responsibility for a child under out-of-home care arrangements made under the Care Act; or who has responsibility for the day-to-day care, welfare and development of the child under the Family Law Act 1975 (Cth) ("the Family Law Act").
The inclusion of s 67(1)(d) in the Act reflects a policy decision that once a child has, by judicial decision, been removed from her, or his, birth parents, and placed with a person who has, or persons who have, responsibility for the day-to-day care, welfare and development of the child under the Family Law Act, or where that person, or those persons, have responsibility for the child under out-of-home care arrangements made under the Care Act, the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption: Re Adoption of KH, Brereton J, at [62].
In Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, Slattery J wrote, at [72]: "Consent dispense orders have also been made: where a birth parent does not seek to appear at a hearing, although the parent is clearly aware of the proceedings and chooses to play no part; where the views of the birth parent have changed throughout the adoption process; and where the parents are ambivalent about giving consent: cf Director General Dept of Human Services; Re M [2011] NSWSC 369."
In Adoption of RCC and RZA [2015] NSWSC 813 ("Adoption of RCC and RZA"), Brereton J made the following remarks, at [11] and [17], with respect to the history and rationale for s 67(1)(d): "... It is not the role of this Court in these proceedings to review the decisions that have been made by the Children's Court in respect of parental responsibility; nor even to determine whether in the different circumstances that prevail today such an order would still have been made; but rather to judge which of the competing proposals (and any viable alternatives) will best serve the interests of these children now and in the future, given what has already happened. ... Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] - endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] - the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child's present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child."
Earlier, in Re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678; [2009] UKSC 17, at [6]-[7], the Supreme Court of the United Kingdom had written: "In this country we take the removal of children from their families extremely seriously … it is not enough that the social workers, the experts or the court think that a child would be better off living with another family. That would be social engineering of a kind which is not permitted in a democratic society."
Section 67(2) of the Act further provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child. Thus, the Court must regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.
Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order.
Notice of the intention to apply for an order dispensing with consent is required: s 72(1) of the Act. As stated, the Plaintiff provided CMS with a Notice of Application for Consent Dispense Order on 18 January 2018, and ALC with one on 22 January 2018. I consider therefore, in the particular circumstances of this case, that it is desirable to make a consent dispense order, notice of the application having been given to each of CMS and ALC at least 14 days prior to the order being made.
It will be appreciated from the above that non-consensual adoption is part of the Act. However, it is necessary for the Court to be satisfied of certain matters. Section 90 of the Act, relevantly, provides: "(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied: (a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child-that the prospective adoptive parent or parents have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and… … (h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)--that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. (2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. (3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child."
In Adoption of RCC and RZA, Brereton J, at [14], stated that s 90(3) requires: "... something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]]."
Brereton J, at [15], reiterated the principles that his Honour had previously expressed in Adoption of NG (No 2) [2014] NSWSC 680 ("Adoption of NG (No 2)") at [16]-[17]: "The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows: Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships; Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and Concerning the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them. In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption."
His Honour went on to explain, at [74], and then at [83]-[84] (Adoption of NG (No 2)): "Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are: restoring the child to the care of the birth mother; allocating parental responsibility in favour of the applicants; maintaining the status quo, with the Minister having parental responsibility and the child in foster care; and deferring determination of the question until the child is older, either maintaining the status quo or making a parental responsibility order in the meantime." … Once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the child is vested in the adoptive parents. Because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court would not likely make an adoption order if there were a realistic prospect of the child being restored to the care of one or both of his birth parents. However, if there is no real prospect of restoration, then the disadvantages of the permanent nature of an adoption order are minimal, and no greater than those of natural legal parenthood; and the advantages of permanency are considerable. Future contingencies in relation to contact can still be addressed and accommodated after an adoption order is made [Re TVK [2012] NSWSC 1629]. The starting point for consideration of whether there is a realistic prospect of restoration is that there is in place an order of the Children's Court allocating parental responsibility to the Minister until the child attains 18 years of age. Implicit in that order is a conclusion that restoration is improbable. That conclusion does not bind this court, and between the time when a care order is made in the Children's Court, and an adoption application is considered in this court, much can change. The Children and Young Persons (Care and Protection) Act 1998 (NSW) itself admits, by s 90, of an application for restoration (by way of rescission of the care order) in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place. Nonetheless, in this type of case, there has already been a judicial decision, by a specialist court, that the child cannot be satisfactorily cared for by the birth parents, such as to require long-term removal."
Sackar J in Adoption of BL [2018] NSWSC 391, at [13], wrote, after referring to the expression "clearly preferable": "…does not require satisfaction beyond reasonable doubt however the word "clearly" serves to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision. In requiring as the Act does to place paramount importance on the best interests of the child a balance needs to be struck. There is a need to protect the child from physical or psychological harm and in so doing consider his or her physical, emotional and educational needs."
In In the matter of Campbell [2011] NSWSC 761, Slattery J, at [55], explained that a "possibility" of restoration involved something less than a probability - that is, something that is not impossible; and that to be realistic, it had to be real or practical - not fanciful, sentimental or idealistic or based upon "unlikely hopes for the future". If the Court were to be satisfied that restoration, now or in the future, was in the best interests of the child, it could not be satisfied that adoption was "clearly preferable".
In Re JLR, Bergin CJ in Eq explained, at [99], that: "The words 'clearly preferable' in s 90(3) do not require the court to be satisfied 'beyond reasonable doubt'. Rather "the word 'clearly' serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be "obviously, plainly or manifestly preferable" to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J)."
In Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926, Sackar J, after referring to the decisions quoted above, wrote, at [38]: "It requires that adoption be "obviously, plainly or manifestly preferable to any other action that could be taken by law": Deputy of Community Services v D (2007) 37 Fam LR 595 at [25]."
His Honour added, at [41]: "I also note the pertinent remarks of Sir Thomas Bingham MR in Re O (Contact: Imposition of conditions) [1995] 2 FLR 124, who stated that 'the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems'".
Thus, it is not enough to show that a child could be placed in a more beneficial environment for her, or his, upbringing. There is often required an acute, and difficult, decision to be made and, often, all practicable answers, to some extent, may be unsatisfactory. Sometimes, the alternatives are finely balanced and will call for critical and often anxious scrutiny.
In reaching the conclusion, "a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare" should be undertaken: Re G (A Child) [2013] EWCA Civ 965, at [50]. The judicial task is to evaluate all the options and undertake a holistic evaluation of what is in the best interests of the child. The holistic balancing exercise of those available options that must be deployed is not so as to undertake a direct comparison of what probably would be best, but in order to ascertain whether or not the particular child's welfare demands adoption. In doing so, it may well be that some features of one, or another, option, taken in isolation, would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits of the different options. Ultimately, however, it is the whole picture that must be considered and that must be done in terms of the short, medium, and long term welfare interests of the child.
In Adoption of Hogarth (No 2) [2019] NSWSC 9, Brereton J wrote, at [18]: "Consideration of whether adoption is clearly preferable to any other action that could be taken requires identification of the likely effects of adoption, and of the various available alternatives, weighing their comparative benefits and detriments from the perspective of the best interests of the child, and concluding whether that shows adoption to be "clearly preferable", in the child's interests, to the alternatives. The alternatives to adoption that require consideration in this case - some in greater depth than others - are (1) restoring [the child] to the care of her birth parents; (2) a parental responsibility order in favour of [the proposed adoptive parent]; (3) maintaining the status quo, with the Minister having parental responsibility and the child in foster care, albeit residing with [the proposed adoptive parent]; and (4) deferring making a decision about adoption. The fundamental issue is whether [the child] should be restored to the care of her birth parents, or should remain in the care of [the proposed adoptive parent], and if the latter whether under the legal construct of adoption, parental responsibility to [the proposed adoptive parent], or parental responsibility to the Minister."
It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see Re Peter [2009] NSWSC 697 ("Re Peter"), per Palmer J, at [35].
As was written in Re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793, by McFarlane LJ, with agreement of the other two members of the Court of Appeal (Jackson and Lindblom LJJ), at [64]: "One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters."
More recently, in Adoption of Taylor-Clarke [2019] NSWSC 27, Brereton J wrote, at [58]: "… [A]doption serves the identity needs of such children - in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family - by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and - because it is not limited to age 18 - not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents."
Also, if the carers who have developed a strong bond of family relationship with the child feel that they are under threat of an application to the Children's Court, at any time, for vacation of a care order and the consequent removal of the child from them, then they could be subjected to a level of stress and anxiety that must affect the parental relationship with the child who is in their care: Re Peter, at [36].
In stating the above, I make clear that it is not being suggested that there is any general rule that adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. The Act emphasises that the Court must have regard to the particular circumstances of the individual case in order to assess whether an adoption order, or some other form of care, best serves the child's best interests.
As was stated in Re B (A Minor) [2002] 1 WLR 258; [2001] UKHL 70 at [16]: "[T]here is no objectively certain answer on which of two or more possible courses is in the best interests of the child ... There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this course or that course will or may have for the child."
Section 92 of the Act provides that if the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit. In this case, if that occurs, it will be necessary to consider only the claim that the parental responsibility for CCS and FLS remain with the Minister, thus preserving the status quo.
As noted by Brereton J in Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 at [237]: "I am not unmindful that a parental responsibility order is a less permanent solution than adoption, may result in some competition between [the Defendant] and [the proposed adoptive parents] for [the child's] loyalty and resultant conflict, and carries a greater risk that there will be further litigation - whether instituted by [the Defendant] to seek additional contact or custody or parental responsibility, or by [the proposed adoptive parents] if they form the view that contact is not working satisfactorily. The desirability of an adoption order, to foreclose the possibility of further litigation, has sometimes been emphasised."
More recently, in Adoption of JLK and CRK, Brereton J also considered the comparative benefits of a parental responsibility order compared with an adoption order, stating at [79]-[81]: "A parental responsibility order in favour of the proposed adoptive parents would also provide a number of the benefits of adoption. It would alleviate the requirement for the intervention of the Department in significant decisions about the children. As the children would no longer be in the parental responsibility of the Minister, they would in that sense no longer be "wards of the State", and as the birth parents agree that under a parental responsibility order the children could nonetheless use the surname of the proposed adoptive parents, it would not be obvious to outsiders that they were not living with their family of origin. A parental responsibility order in favour of the proposed adoptive parents would avoid severing the legal relationship between the children and their birth family, thus maintaining the legal status of the birth parents, albeit without parental responsibility. It would also maintain the legal relationship between the children and their brothers. However, such an order would not provide the same absolute sense of stability, security and permanence as a member of the adopters' family forever that would be provided by adoption: such an arrangement would last only until 18 years of age and would not provide a lifetime family for the children. Nor would it give the children equivalent status to the other children of the proposed adoptive parents, as adoption would. And such an order is, at least in theory, amenable to variation, whereas an adoption order is not. While, as Ms Dart rightly submitted, an order allocating parental responsibility to the proposed adoptive parents under Adoption Act, s 92, would not be amenable to an application (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90, which is confined to "care orders" under that Act, a parental responsibility order under s 92 of the Adoption Act, could be re-opened in the event of a significant change of circumstances."
On the making of an adoption order, the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Care Act) ceases to have effect: s 96(1)(a) of the Act.

Determination

Restoration is clearly to be assessed as at the date of the hearing according to the paramount consideration of what is in the best interests of CCS and FLS. In my view, there is simply no realistic possibility of restoration to either of ALC or CMS on the facts. So far as CMS is concerned, this seems to have been accepted.
Even though restoration is not an option in the present case, it does not automatically follow that there should be an adoption order made in respect of CCS and FLS. The Court must be satisfied that this proposed course is truly in their best interests and that the making of such an order is clearly preferable.
Ms Wilson and Ms Sedgwick have both provided an opinion that adoption would indeed be what is in the best interests of the two children. This evidence, which was not the subject of challenge, from experts in the field, prima facie, suggests that adoption would be preferable, without the stigma and uncertainty attached with the maintenance of the status quo, in which the proposed adoptive parents would continue to care for the two children but be faced with a potential application for restoration sometime in the future.
In addition, as a result of the events that have occurred, Ms Sedgwick has gone further and, in her affidavit annexing a further report pursuant to s 91 of the Act, opined that "in consideration of all the above, it is clear to me that [CCS] and [FLS's] best interests will be served by the making of an Adoption Order. There is no change to the fact that [DLAB] and [RAB] are certainly the people who know [CCS] and [FLS] the best and love them unconditionally and they are best placed to make decisions about their care both now and in the future".
There can be little doubt that it is generally accepted that siblings should be together unless it is contrary to one, or both, child's welfare. A shared history, albeit they are so young, and the experiences already had whilst in the care of RAB and DLAB, will help self-identity and self-esteem as each provides support and companionship to the other. The support and companionship of each other may also mitigate the impact to each of them becoming an adopted person, with the consequent severance of legal and emotional ties with his and her birth parents and family, although as a result of the registration of the amended Adoption Plans, there will not be a complete severance of those emotional ties.
Whilst I have not observed either of RAB or DLAB give oral evidence, from what I have read about them, each appears to be loving, caring, and entirely capable of providing for, CCS and FLS, both emotionally and financially. This also was not challenged by CMS. The children have been in the care of the proposed adoptive parents for some years, and this, also, is extremely relevant, bearing in mind the age of each child, respectively, in the assessment of the bond that RAB and DLAB has with each of them.
The adoption order, in each case, will provide a significant source of continuity throughout the lifetime of each of CCS and FLS.
For the purposes of s 90(1)(b) of the Act, neither of the children is of an age or understanding at which it is practicable to ascertain his or her wishes in respect of adoption. However, there is some evidence about his and her relationship and connections with RAB and DLAB and also in respect of each birth parent. Both are well settled in their placement and each responds positively to RAB and DLAB. I am more than satisfied that each child has developed a strong and secure attachment to both RAB and DLAB, and consequently there is a sense of security and belonging.
I shall mention the other options briefly. I have considered a parental responsibility order in favour of RAB and DLAB, without adoption; leaving in place the status quo, with the Minister having parental responsibility and the children remaining in the care of RAB and DLAB; and, at least theoretically, deferring making a decision about adoption.
A parental responsibility order in favour of RAB and DLAB - as distinct from an adoption order - would have some, but not all, of the benefits of adoption. In particular, it would alleviate the requirement for the intervention of the Department in significant decisions about the children. Such an arrangement would last only until each child attains 18 years of age, and it would not confer the benefits of adoption, namely, permanence, security, stability, and lifetime membership of the adoptive family.
Also, whilst an adoption order is permanent, a parental responsibility order may be varied, although a significant change of circumstances is usually required to justify re-opening the issue. Furthermore, a parental responsibility order, while giving the carers the rights and responsibilities of parenthood, does not permanently sever the legal relationship between the birth parents and the children. I do not think that taking this course is in the best interests of the children.
Maintenance of the status quo would involve CCS and FLS continuing to reside with RAB and DLAB as their foster parents, under the parental responsibility of the Minister. The children would remain in "out-of-home" care, and leave a state of uncertainty as to his and her future. This option would also leave each child a ward of the Minister, with the consequence that departmental approval would be required for significant decisions concerning his, and her, care and welfare. I do not think that taking this course is in the best interests of either of the children.
Finally, I am of the view that to defer the final determination of the adoption question until each child is older would not benefit them, the birth parents or the proposed adoptive parents. Any emotional anguish, instability, stress and uncertainty would simply continue. Furthermore, to take this course would be inconsistent with the principle in s 8(1)(e1) of the Act, namely that "undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare".
It is, next, convenient to canvass the advantages and disadvantages of a proposal "to re-locate" the children as this is a relevant consideration.
To permit the relocation will require the Court to be satisfied that the practicalities of life equally, or sufficiently, exist in the place to which the proposed adoptive parents propose to move the children. This involves an additional level of speculation about future events that might impact upon their future development and well-being. Furthermore, an analysis of the capacity of all of the persons affected to provide for such practicalities is required.
There is little doubt, from the evidence which has been read, that RAB and DLAB have already started to make, and will make, proper arrangements to meet the children's day-to-day needs. They have already started the process and have made enquiries concerning the children's schooling. There are no concerns in relation to the physical environment to which the children will be taken.
Even though moving will involve some changes to the children's lives and require some adjustments on the part of each of them, they are young and it is not as if they are being relocated to another country where, for example, English is not spoken. There is unlikely to be a significant change in their lifestyle.
I have mentioned the difficulties of contact with ALC and CMS but these difficulties appear to have been considered in the amended Adoption Plans. Additionally, the place to which the children will be relocated is not so geographically remote that this is likely to be a real issue.
I also remember that the children have been in the primary care of RAB and DLAB for some time. Again, the evidence overall makes clear that both have been active and engaged carers involved in all decisions regarding the children's care, welfare and development.
Finally, the paramount consideration must be the best interests of CCS and FLS.
On the evidence, I am of the view that adoption is in the best interests of the children now, and in the future, and that it is the clearly preferable course to take above all others. RAB and DLAB have provided each of CCS and FLS with exceptional care for nearly his, and her, whole life, respectively, and have had an established and stable relationship with each of them for some time. There can be little doubt that adoption will enhance the belonging and sense of permanence in RAB's and DLAB's family and will promote the welfare of each of CCS and FLS. For these reasons, the Court will also make the consent dispense order in respect of each of ALC and CMS.
The name change proposed for each child involves a change of his and her surname, respectively, from that of CMS to that of RAB and DLAB, and their biological children. The change of surname will avoid each of CCS and FLS being constantly questioned and being reminded of their adoption. Instead, each will grow up believing that each truly belongs to the AB family.
The proposed adoptive parents have agreed to retain the family name of the children's birth father, which will continue their connection to the paternal family. These reminders of, and connections to, their biological heritage may be of some importance to each as each child grows older. The retention of the first names, CC and FL, will also provide a similar connection to ALC, who, presumably, participated in choosing those names for each of the children.
Finally, I note agreement was reached in relation to each amended Adoption Plan and, accordingly, I propose to approve the registration of each amended Adoption Plan. It was gratifying to see CMS able to reach an agreement about the details of the Adoption Plan.
The history of RAB and DLAB's communication with each of ALC and CMS, hopefully, will continue and the agreement reached suggests that it is more likely each of the registered Adoption Plans will continue to be successfully implemented.
I am satisfied that adoption will encourage a relationship of stability and commitment between all parties, particularly given the agreement between the proposed adoptive parents and the birth parents to the terms of the amended Adoption Plan (in each case). But, perhaps more importantly, the adoption will provide the children with a sense of belonging in a family each has known for a significant part of his and her life respectively. It will provide each now, and as each gets older, with a sense of security, permanency and love.
In the circumstances, and using the initials used in these reasons, but noting that in the orders as entered, the full names of the relevant parties will be included, the Court: 1. Orders pursuant to the Adoption Act 2000 (NSW), s 67(1)(d), that the consent of the child's birth mother, ALC, be dispensed with. 2. Orders pursuant to the Adoption Act, s 67(1)(d), that the consent of the child's birth father, CMS, be dispensed with. 3. Orders pursuant to the Adoption Act, s 50(3), the amended Maternal Adoption Plan (being Ex. ALC1) in relation to the children, signed by the proposed adoptive parents and a delegate of the Secretary, Department of Family and Community Services on 31 October 2018, be registered. 4. Orders pursuant to the Adoption Act, s 50(3), the amended Paternal Adoption Plan (being Ex. CMS1) in relation to the children, signed by the proposed adoptive parents and a delegate of the Secretary, Department of Family and Community Services on 30 November 2018 be registered. 5. Makes an order for the adoption of CCS in favour of the adopting parents, RAB and DLAB, and approves the names "AB" as the surname and "CCS" as the given names of the child CCS. 6. Makes an order for the adoption of FLS in favour of the adopting parents, RAB and DLAB, and approves the names "AB" as the surname and "FLS" as the given names of the child FLS.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2019

(2011) 45 Fam LR 681

(1993) 16 Fam LR 970

(2007) 37 Fam LR 595

(2006) 36 Fam LR 142

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